I’d like to discuss what is sometimes claimed to be a major problem for theories of rights like that of Murray Rothbard, which start from the principle of self-ownership and incorporate a Lockean principle of initial appropriation of resources. In brief, you own yourself; you “mix your labor” with unowned land or resources, and in this way you acquire the land or resources. The details of what you have to do to acquire the property do not for our purposes matter, and some people prefer to avoid altogether the language of labor mixture. What counts for our purposes is that your self-ownership is extended outward to objects in the world, making these objects yours as well.
The alleged problem for theories of this type is that parents in some sense “make” their children. If “you own what you make,” don’t parents own their children? Thus, the two principles of the theory of rights we’re discussing seem to be in conflict. Persons are self-owners, you own what you make, and children are persons. Do parents own their children, because you own what you make, or are children self-owners, because they are persons, and persons own themselves?
One apparent escape route for the theory is blocked. Ownership in this sort of rights theory is permanent; once you acquire something, it is yours to keep, unless you give it away or exchange it for something else. Thus, one cannot say that parents own their children but lose their ownership of them when the children become adults. That position would be a different theory from the one we are now examining.
A new problem now arises. Suppose parents own their children because they made them. Who made the parents? Their parents. Do these parents own not only their children, but their grandchildren as well? Or should we say that each set of parents owns its own children, but is not itself composed of self-owners, because each member of the set is owned by its own parents? We seem caught in confusion. Are we driven to adopt the Roman concept of the pater familias, in which adult males remained under the life-and-death power of their fathers until their fathers died? They would then in their turn succeed to the role of pater familias. (I won’t go into complications resulting from bringing in the rights of the mother; in the libertarian theory we are examining no less than those of the father.)
One even more extreme solution would be that the first parents own all subsequent generations and that they pass on their ownership rights through bequest to their successors. This “solution,” if it can be called that, was actually adopted by the defender of absolute monarchy Sir Robert Filmer in his Patriarcha, published after his death in 1680, but as in the Roman system, ownership rights are passed only in the male line. Locke devotes his First Treatise on Government to a reply to him.
Is there a way out? I believe that there is indeed. The whole set of problems we have been talking about arises from a mistaken assumption. Our starting point, once more, is the principle of self-ownership. Given this principle, the question then arises, can self-owners extend their ownership to unowned resources? To say that they can do so, through Lockean labor mixture or the equivalent, does not commit you to the principle that you own what you make, where this is taken to include persons within its scope. The question we are addressing, to reiterate, concerns only unowned objects. Why create a problem where it is unnecessary to do so?
Suppose that you reject my solution and claim that self-ownership and “you own what you make” are principles of independent force. Then you will face the following difficulty, in addition to having to deal with the problems mentioned above. Suppose that someone paints your house while you are away from your property. Does he now own part of your house because he has “made” part of it? It would not be a good answer to say that he doesn’t because you did not give him permission to work on the house. The principle “you own what you make” is supposed to have independent force. Why is it to be restricted to unowned objects? And if it is, is it at all plausible to claim that it is not to be restricted to persons whom you have made, when it is also maintained that all persons are self-owners? The self-ownership principle, on the view we are contesting, also has independent force, so why is to be subordinated to “you own what you make”? This strikes me as bizarre.
I seem open to this objection. I’m talking about a Rothbardian theory of rights, but Rothbard himself speaks of “homesteading” children. Isn’t Rothbard then adopting the principle “you own what you make,” understood as applying to persons, which I claim is bizarre? An examination of The Ethics of Liberty shows that this objection is mistaken. What Rothbard has in mind is that parents are the guardians of their children while they remain under their care. Children cannot be prevented from leaving, and as soon as they do, they become full self-owners. Thus, he says,
We must therefore state that, even from birth, the parental ownership is not absolute but of a “trustee” or guardianship kind. In short, every baby, as soon as it is born and is therefore no longer contained within his mother’s body, possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal and a violation of the child’s rights for a parent to aggress against his person by mutilating, torturing, murdering him, etc.…But when are we to say that this parental trustee jurisdiction over children shall come to an end? Surely, any particular age (21, 18, or whatever) can only be completely arbitrary. The clue to the solution of this thorny question lies in the parental property rights in their home. For the child has his full rights of self-ownership when he demonstrates that he has them in nature—in short, when he leaves or “runs away” from home. (The Ethics of Liberty, pp. 100, 103)
In my view the language of “homesteading” of persons is best abandoned. Retaining it causes confusion, and nothing essential to the theory is lost by giving it up.
